Cooling-off period for divorce can be waived, says SC

No need to continue aimless marriage

The Supreme Court on Tuesday held that the mandatory six months cooling-off period for divorce through mutual consent could be waived if there is no chance of reconciliation.

A bench of Justices Adarsh Kumar Goel and U U Lalit said there is no point to perpetuate a purposeless marriage or to prolong the agony of the parties.

“Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option,” the bench said.

“We are of the view that the period (six months) mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation,” the bench added.

The top court laid down conditions where the couple could be allowed to file waiver application within one week of the first motion for divorce on mutual consent.

It included the statutory period of six months, in addition to the statutory period of one year of separation of parties is already over before the first motion itself, where all efforts for mediation to reunite have failed and where the parties have genuinely settled their differences, including alimony, custody of a child or any other pending issues.

The Hindu Marriage Act was amended in 1976 to bring in the concept of divorce by mutual consent if the marriage has irretrievably broken down.

However, Section 13B(2) contained a bar to enable the parties to rethink.

“The objective of the cooling-off period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled,” the court said.

The judgement came in the case of a Delhi couple who sought a relaxation of six months time on the ground that they were living separately for eight years and there was no possibility of a reunion.

DH News Service